Tenants of Federally Financed Housing Lose Rights to Lead Paint Abatement

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2 Copyright 1993 by National Clearinghouse for Legal Services, Inc. All rights reserved. 26 Clearinghouse Review 1583 (April 1993) Tenants of Federally Financed Housing Lose Rights to Lead Paint Abatement by Lucy Billings Lucy Billings is director of special litigation and training at Bronx Legal Services, 579 Courtlandt Ave., Bronx, NY 10451, (718) The Residential Lead-Based Paint Hazard Reduction Act, Title X of the Housing and Community Development Act of 1992, was signed into law by President Bush on October 28, /1/ Suddenly tenants of federally financed housing who have young children, lead poisoned or not, have had their rights to lead abatement pulled out from under them. This article will compare the mandate in the former Lead-Based Paint Poisoning Prevention Act (LPPPA) /2/ with the revisions made by the Residential Lead-Based Paint Hazard Reduction Act, and discuss why these revisions are unsound for legal, public health, and fiscal reasons. The article will also discuss how tenants in different jurisdictions may be affected. I. The Former Statute The LPPPA stated: The Secretary of Housing and Urban Development... shall establish procedures to eliminate as far as practicable the hazards of lead based paint poisoning with respect to any existing housing which may present such hazards and which is covered by an application for mortgage insurance or housing assistance payments under a program administered by the Secretary. Such procedures shall apply to all such housing constructed or substantially rehabilitated prior to 1978 and shall at a minimum provide for (1) appropriate measures to eliminate as far as practicable immediate hazards due to the presence of accessible intact, intact, and nonintact interior and exterior painted surfaces that may contain lead in any such housing in which any child who is less than 7 years of age resides or is expected to reside.... /3/ Thus, up to now, 42 U.S.C. Sec. 4822(a) recognized "the presence of accessible intact, intact, and nonintact interior and exterior painted surfaces that may contain lead in any [federally assisted] housing in which any child who is less than 7 years of age resides or is expected to reside" as "immediate hazards." The statute required elimination of all lead

3 paint. In addition, the law required HUD and local public housing authorities (PHAs) to deal with lead paint both before and after a child was poisoned. II. Current Revisions A. New Definition of Lead-Based Paint Hazard Section 1004(15) of the new Act redefines a "lead-based paint hazard" as "any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or leadcontaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects." /4/ This is something less than all lead paint, even less than all interior lead paint. The new Act amends the previous statute to require only evaluation, reduction, or elimination of peeling, chewable, and abradable surfaces and defines a lead paint hazard to include only those surfaces. B. Requirement to Eliminate Lead-Based Paint Hazards Section 1012(a)(3) of the new Act is the crux of the problem. It amends 42 U.S.C. Sec. 4822(a) to delete the requirement that all lead paint, "accessible intact, intact, and nonintact," be eliminated. /5/ Although advocates had much more to do, many families with lead-poisoned children and experts who treat these children daily fought too long for the provision as it previously read in the LPPPA. It survived much litigation. It was the basis for strengthening past deficient federal regulations and could have been the basis for further strengthening still deficient federal regulations, either in litigation or in a new HUD. It was also the basis for similar local legislation, so that federal housing and private housing are treated similarly. The deletion of the requirement to remove all lead-based paint has reversed more than a decade of progress toward lead-poisoning prevention. C. Effect of These Revisions on Tenants of Federally Funded Housing Under the new Act, families with young children will be entitled only to the following: (1) Families living in "target housing," i.e., housing most at risk, will be entitled to a "risk assessment" sometime within the next 10 years. /6/ (2) At some undefined time after the risk assessment, or if the housing unit undergoes rehabilitation, the family will be entitled to "interim controls." /7/ "Interim controls" include cover-up of peeling paint and cleanup of dust (a monitoring procedure that is

4 supposed to occur promptly and frequently, every three to six months, just until abatement). /8/ (3) The family will be entitled to lead abatement only if the unit undergoes rehabilitation using $25,000 in federal funds; /9/ such abatement will still not include abatement of intact surfaces, which will only later deteriorate. A ten-year plan for lead paint abatement would certainly be acceptable. A ten-year plan for risk assessments of nontarget housing might be acceptable. Under the new Act, the only housing targeted to be assessed is housing where emergency lead poisoning situations exist, and this housing is going to be assessed only sometime within ten years. In addition, under the new Act, even if a unit undergoes rehabilitation, the lead paint danger will only be reduced, not eliminated. The Act defines lead paint reduction to include interim controls. Even where abatement is used, not all lead paint must be abated. Even if a unit receives a $25,000 federally funded rehabilitation, all lead paint, all of which is a hazard, will not be eliminated--only the newly defined "lead-based paint hazards." It is of course appropriate to ensure that rehabilitation includes abatement, but now abatement is required only when rehabilitation is undertaken. Needless to say, legal services clients and other low-income tenants may need, but rarely, if ever, receive $25,000 rehabilitation jobs. III. The Previous Federal Mandate Versus the New Act: How Will the New Act Serve Federally Assisted Tenants? A. The Previous Federal Mandate Was Not Proved Unenforceable The preamble to the new Act acknowledges that the federal response to the national crisis of lead poisoning has been severely limited. /10/ It would be different if government had seriously attempted to respond to the previous mandate to eliminate lead paint and then found it impracticable. Not having tried to attain the goal is no reason to lower our sights. Indeed the preamble calls upon federal government to take a leadership role in the effort to eliminate lead-based paint hazards. /11/ This is hardly likely now that the federal government's sights fall short of states' and cities' previously announced goals. If the previous mandate was not properly implemented, this also means that as advocates we have not been doing our jobs. We should have been more aggressive on this issue, but we are too few and far between. Suddenly when our ranks swelled with groups newer to lead poisoning prevention, some of them promoted a new law that has taken away our enforcement tools.

5 B. The New Act's Positive Points Do Not Justify Paring Away Abatement Requirements for Federally Assisted Tenants Much of the new Act is positive and supportable, particularly by jurisdictions that have few local protections for private housing. The new Act extends a few of its federal standards to private housing, a step that jurisdictions can either applaud as a move in the right direction or criticize as too slow and too little. In jurisdictions that already have local laws for private housing modelled after the previous, stricter federal standards, the weaker federal standards may give local governments license to dilute the local laws. Although jurisdictions that have no local lead poisoning prevention mandates may have gained something for private housing, taking the mandates backward for federal housing across the country is unjustifiable. As shown above, the new Act seriously weakens previous federal law, which applied to all federally assisted housing. Steps forward and into private housing should not have sacrificed tenants in federally financed housing, who are almost by definition of low-income. For them, the federal statute is no longer the lead poisoning prevention statute it once was. The federal law was one of the bases for requiring elimination of all lead paint in New York City law. /12/ New York City advocates have spent more than 10 years establishing and defending these laws, and in doing so we have become convinced of their merits. It is certainly difficult to be convinced of their lack of merit when neither HUD, local PHAs responsible for implementing HUD standards, nor localities with similar local laws have made serious attempts to implement them. Now that this amendment has succeeded at the federal level, it has added much fuel to New York City's attempts to amend city law similarly or more drastically. Surely it will have the same effect in other local jurisdictions with similar protections. The fact that a law has not been obeyed does not mean it should be weakened. The former lead paint abatement mandates needed tighter enforcement procedures. Now Congress has sent a signal to HUD and to PHAs--a signal that may be followed in local government-- that when the legislature enacts a statute requiring administrative agencies to take action, and it is not obeyed, the legislature will retreat at their urging. No one expected abatement of all lead paint overnight. The qualifiers "as far as practicable" and "immediate" in the previous law already indicated as much and provided enough basis for any necessary prioritization. The provision should have been left as it stood. It had withstood the test of time. Attention should be focussed on accomplishing its original purpose once and for all. As for fiscal concerns, HUD's Report to Congress /13/ showed an $1,800 average lead abatement cost for interior surfaces. Most federally funded housing is apartments, so advocates for tenants of federally funded housing are concerned mainly with interior surfaces. HUD's study also showed further economies if lead abatement and rehabilitation

6 are undertaken together. Even if the abatement might cost twice this figure (e.g., $3,600), it would still be less than 15 percent of the $25,000-plus rehabilitation cost before the abatement is required. This ratio further ignores the fact that the abatement will protect against serious damage to a child's health and potential. Moreover, these figures assume 100 percent federal financing for the local owner. All lead paint is a health hazard to young children. In older housing with a young child, paint that is intact today may well not be intact tomorrow--it only takes one toy thrown against the wall. Proper interim controls would have to be so constant that it is ultimately cheaper to eliminate all lead paint. C. Full Abatement Is Necessary and Cost-Effective Experts nationwide have testified on these points. The problem is lead paint and dust from that paint. The solution is both abatement and dust control. Both intact and nonintact lead paint are hazards. Excluding intact lead paint from response measures is counterproductive. In-place management (also known as "interim controls") is not to be confused with abatement. Full lead paint abatement is still necessary and cannot be replaced by in-place management. The two are complementary, not exclusive. If both are undertaken, the short-term track, interim controls, and the long-term track, full abatement, must proceed simultaneously and be coordinated, but remain distinct. Full abatement is more cost-effective than risk assessment and interim controls. Interim controls will result in high costs and inefficient use of resources because, as long as lead paint remains, the paint and dust have to be continually monitored. In addition, control measures are untested. The short-term responses and their effectiveness are still being researched. In contrast, we know that abatement prevents lead poisoning if performed according to proper procedures. In fact, full abatement is absolutely essential to reduce poisoning; repainting and reducing dust levels are not enough. The only reason to delay or limit full abatement is the absence of trained abatement workers. Although the technology to do proper abatement exists, worker training is part of the safety procedures that HUD promulgated three years ago (and that New York courts ordered almost four years ago). /14/ Abatement costs are even lower than HUD has estimated. Many costs often included in "abatement costs" are actually costs to meet other obligations and to achieve other benefits for the owner and enhance property value, such as curing code violations and structural defects, averting personal injury litigation, lowering ongoing energy and other maintenance costs, and rehabilitation and modernization. Indeed, when rehabilitation or modernization occurs, abatement is virtually automatic and not a separate cost.

7 In addition, the costs of failing to provide for proper lead paint abatement are much higher. The Centers for Disease Control's cost-benefit analysis shows it is too expensive not to abate and even underestimates the benefits. /15/ The market has failed to recognize this and price homes containing lead paint properly. Rectification of this market failure is government's proper role. IV. Getting Advocates on the Right Track The new Act robs legal services clients and other low-income persons of rights they have pursued entitling them to elimination of lead paint in their housing. Whether they have any local protections, federally assisted tenants everywhere have suffered a monumental loss. In contrast to the national experts' and federal housing tenants' points of view, some advocacy groups in the District of Columbia supported this bill. Although it does contain positive elements, these elements fail to counter the retraction of tenants' and children's enforceable rights. These groups may not realize what they have done. Advocates for low-income people should come together to reframe the national approach away from short-term strategies and toward correcting lead hazards before children are poisoned. Congress, HUD, and EPA can take several, immediate actions to ensure that the new Act's provisions are meaningful for its intended beneficiaries. Anyone interested in trying to bring back federal tenants' rights to lead abatement should contact Lucy Billings, Bronx Legal Services, 579 Courtlandt Ave., Bronx, NY 10452, (718) , FAX: (718) ; or George Gould, Community Legal Services, 1324 Locust St., Philadelphia, PA 19107, (215) , FAX: (215) Footnotes /1/ The Residential Lead-Based Paint Hazard Reduction Act, Pub. L. No , 106 Stat (1992) (Title X of the Housing and Community Development Act of 1992). /2/ Lead-Based Paint Poisoning Prevention Act (LPPPA), 42 U.S.C.S. Sec (Law. Co-op. 1989). /3/ Id. Sec. 4822(a). /4/ The Residential Lead-Based Paint Hazard Reduction Act, Pub. L. No , Sec. 1004(15), 106 Stat (1992). /5/ Id. Sec. 1012(a)(3), 106 Stat /6/ Id. Sec. 1012(a)(3)(B), 106 Stat

8 /7/ Id. /8/ Id. Sec. 1004(13), 106 Stat /9/ Id. Sec. 1012(a)(3)(D), 106 Stat /10/ Id. Sec. 1002(7), 106 Stat /11/ Id. Sec. 1002(8), 106 Stat /12/ For more information on New York's law, see Lucy A. Billings, Development of Safety Procedures for Abatement of Lead-Based Paint, 25 CLEARINGHOUSE REV (Apr. 1992). /13/ HUD, COMPREHENSIVE AND WORKABLE PLAN FOR THE ABATEMENT OF LEAD-BASED PAINT IN PRIVATELY-OWNED HOUSING: A REPORT TO CONGRESS (Dec. 7, 1990). /14/ New York City Coalition to End Lead Poisoning v. Koch, No /65, slip op. (N.Y. Sup. Ct. New York County July 6, 1989), aff'd, 170 A.D.2d 419, 556 N.Y.S.2d 861 (1991) (Clearinghouse No. 39,406). /15/ HHS, STRATEGIC PLAN FOR THE ELIMINATION OF CHILDHOOD LEAD POISONING 10-12, app. II (Feb. 1991).